Decision looms over captive orca, but fate of Lolita unclear

SEATTLE (AP) — For years, animal activists have campaigned to free a killer whale that was captured from Puget Sound waters in 1970 and has been performing at Miami Seaquarium in Florida for over four decades.

They say the orca known as Lolita belongs to a small population of endangered killer whales and should receive the same federal protection as those wild animals.

A decision from the federal government is expected in early February. But far from ending debate, it's likely to prompt a new round of battles over the fate of the whale, who was four or six years old when she was legally rounded up and later sent to the Miami facility.

Robert Rose, curator of the Miami Seaquarium, said he anticipates that the National Marine Fisheries Service will include Lolita in that endangered group.

"Regardless of what happens with the listing, she's not going to be released," Rose said in an interview Wednesday. "We're not going to sell her. We're not going to release her. Period. End of story."

Lolita is a healthy, vibrant animal, has been well cared for by the Seaquarium for 45 years and would endure more harm if she's released into the wild, Rose said. Thousands of visitors who would never see a killer whale in the wild are introduced to killer whales through Lolita, according to the Seaquarium.

Activists say, however, that she belongs in the wild, not a small pool, and should be returned to her home waters. She has become a rallying cry for these activists, who have led a decades-long campaign to get her freed.

The whale would have more freedom and the chance to bond with others in the tightly-knit pod of orcas that spend time in Washington state waters, activists said. Her probable mother is still alive, they say.

"She is suffering in that cramped confinement," said Howard Garrett, director of the nonprofit Orca Network, based on Whidbey Island. "We would like to see her enjoy her life. We would like to see her be able to swim free in the waters where she grew up."

The group wants Lolita released into a protected marine pen near the San Juan Islands north of Seattle, where she will be monitored and cared for until she can gradually reconnect with other wild orcas.

"That's an experiment. That's not a plan. They basically want to kill her," the Seaquarium's Rose said.

Rose pointed to the case of the killer whale Keiko, who starred in the 1993 film "Free Willy" and was later released into the wild.

"He didn't have Hollywood movie ending," Rose said. He died in Norway, presumably of pneumonia.

Garrett said there's minimal risk of harm to Lolita or other orcas if she's returned to her home waters, he said.

When the Fisheries Service, a branch of the National Oceanic and Atmospheric Administration (NOAA), listed southern resident killer whales as endangered species in 2005, it excluded animals placed in captivity prior to the listing or their captive-born offspring.

In 2013, People for the Ethical Treatment of Animals Foundation and others petitioned NOAA to extend federal protection to Lolita. NOAA last year proposed including Lolita in that endangered group.

An endangered designation will allow citizens to sue the Seaquarium for a violation of provisions of the Endangered Species Act against harming or harassing a protected animal, Garrett said.

But "what constitutes harm or harassment would really be the question," said Dan Rohlf, a law professor at Lewis & Clark Law School in Portland, Oregon.

Jared Goodman, an attorney for PETA, said Lolita is kept under deplorable conditions — in a small tank that's not shaded and without other whales for companions — that would violate provisions of the Endangered Species Act. He said NOAA also could rule that she should be retired or confiscated.

The Seaquarium points out that NOAA has said it believes releasing a captive animal into the wild has the potential to harm not only that captive animal and but others in the wild. NOAA also said last year that it believed continued possession of captives and continued care of captive animals would not violate the federal law as long as the possession not likely to result in injury.

PETA's Goodman countered: "She would have the opportunity to feel the ocean waves and currents and learn to forage again, instead of being fed dead fish in exchange for tricks."